Life of James Buchanan, Fifteenth President of the United States. v. 1 (of 2)

by George Ticknor Curtis

And in the first place, it would be physically impossible for the district courts of the United States to carry this law into execution; and if it were even possible, it would be extremely burdensome and oppressive to the people generally.

The bill prescribes that all applicants for its benefit shall file their petitions in the district court of the district in which they reside. Twenty days’ notice only is required, and that not to be served personally on the creditors, but merely by newspaper publication. At the time and place appointed, the creditors of the applicant may appear and show cause why the prayer of his petition should not be granted. If there be no appearance on the part of the creditors, or sufficient cause be not shown to the contrary, then the court decree the applicant to be a bankrupt; and thus ends the first stage of the proceedings, so far as he is personally concerned.

After such applicant has been thus declared a bankrupt, and has complied with all the provisions of the act, he may then file another petition to be discharged from his debts, which may be granted at any time after ninety days from the date of the decree declaring him a bankrupt. Seventy days’ notice is to be given to his creditors to appear in court, and oppose his discharge, if they think proper.

It thus appeared that there might be two formal hearings in each case before the district court upon every application; and that there would be, in many of the cases, was beyond a doubt. Besides, from the very nature of the proceedings in bankruptcy, and from the provisions of the bill, the interlocutory applications, and the examinations of the bankrupt before the court, must be very numerous. At every stage of the proceedings a large portion of the time of the court must necessarily be devoted to the subject.

Should the district court decide that the bankrupt shall not be discharged, he might then demand a trial by jury, or appeal from this decision to the circuit court. This would be another prolific fountain of business for the district and circuit courts of the United States.

Thus far the proceeding was confined to the bankrupt personally. But before what court was his estate to be settled? By the terms of the bill, the demands of all creditors of the bankrupt, if disputed, must be tried in the district court; the controversies which might arise between the creditors and the assignees of the bankrupt, and also between the bankrupt himself and his assignees, must be settled in the district court; and, to use the comprehensive terms of the bill, the jurisdiction of that court was extended “to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy.”

There were also several criminal offences created by the bill; all of which must be tried in the district courts of the United States.

From the nature of the federal Constitution, all the business which he had enumerated must necessarily be transacted in the courts of the United States. It could not be transferred to the State courts.

Now, sir, said Mr. B., this bill will prove to be a felo de se. It can never be carried into effect, for want of the necessary judicial machinery. Another midnight judiciary must be established, to aid bankruptcy. The number of these midnight judges which were added to the federal judiciary in February, 1801, was eighteen; and if these were necessary at that time, three times the number would not be sufficient at present.

He had just examined McCullough’s Commercial Dictionary, under the title Bankruptcy. He there found that the annual number of commissions of bankruptcy opened in England on an average of nine years, ending with the year 1830, was a little below seventeen hundred. The average annual number of all the commissions which issued during the same period, was about two thousand one hundred. One-half of these seventeen hundred cases were what are called town cases, and the other half country cases. To transact the town business alone, consisting of eight hundred and fifty cases annually, it had been found necessary to establish a new court of bankruptcy, similar to the ancient courts at Westminster Hall, consisting of one chief judge, and three puisne judges. To this court there were attached six commissioners, two principal registrars, and eight deputy registrars. Such was the judicial force found necessary in England to examine and decide upon the cases of seven hundred and fifty bankrupts in each year.